Appeal of Eliot

• Decision Date: 05 March 1902
• Citation: 74 Conn. 686,51 A. 558
• Parties: Appeal of ELIOT et al.
• Court: Connecticut Supreme Court

51 A. 558

74 Conn. 686

Appeal of ELIOT et al.

Supreme Court of Errors of Connecticut.

March 5, 1902.

Case reserved from superior court, New Haven county; Milton A. Shumway, Judge.

Appeal by Gustavas Eliot, executor, trustee, and guardian, and others from an order of the probate court directing the distribution of the estate of Betsey Bradley. Taken to the superior court and there reserved upon a demurrer to the reasons of the appeal. Demurrer directed to be sustained.

Before proceeding with the argument in this court a question arose as to which party had the right to open and close. The heirs at law claimed it under rules of court, § 48, p. 105; and the residuary legatees, because they were bound to maintain the legal sufficiency of their demurrer. After a brief consultation the court ruled that the residuary legatees should open and close. The material portions of the will of Betsey Bradley were as follows: "Ninth. I give, devise, and bequeath to my trustees, hereinafter named, my homestead in New Haven, with all of the household furniture therein, and all other property of every nature (except the bequests mentioned in the foregoing sections of this my will) of which I may die possessed; all of which is to be held and used by said trustee for the following purposes, viz.: To safely invest said trust estate, to change investments from time to time as he may deem necessary, and to pay from said estate to Ann Forbes, yearly during her lifetime, the sum of one hundred thirty-three & 34/100 dollars, in semiannual payments, in the months of June and December, in consideration for property received from my brother David Forbes. To apply the residue of the income, or so much thereof of said estate as in the judgment of my said trustee may be necessary for the comfortable support of my brother Josephus Forbes, during his lifetime; and to furnish him with suitable burial and monument at his grave, after his death; and if at any time from any cause the income from said trust shall not be sufficient for the above-named purposes, then I authorize my said trustee to use so much of the principal of said trust estate as may be necessary for said purposes. If the income of said trust estate should not all be used as aforesaid, then the surplus shall be added to the principal and shall become part thereof. It is my will to give my trustee full power to furnish such support for my brother Josephus as he may deem best, either by employing some suitable person to occupy the house belonging to said estate, and care for my said brother, or by providing for him otherwise, as said trustee may deem best. Tenth. At the death of my brother Josephus I give and bequeath to the Episcopal Church society of New Haven known as 'Saint Paul's' six hundred dollars; one hundred dollars of the same I will be invested by the wardens and vestry of said society, the income therefrom to be used for the perpetual care of my burial lot in East Haven Cemetery. Eleventh. To my nephew, Alfred Forbes, and my niece, Mary Ann Eliot, I give and bequeath the sum of two hundred dollars, each. Twelfth. I give, devise, and bequeath my homestead to the Episcopal Church society of New Haven known as 'Saint Paul's,' for the purpose of erecting a chapel thereon. Thirteenth. In the event of Ann Forbes surviving my brother Josephus, my trustee is authorized to reserve a sum from my estate sufficient to produce an income that will pay her annually the sum of one hundred thirty-three and 34/100 dollars; and at her death the amount so reserved, with any addition, shall be divided hi like manner as provided in the following section of my will. Fourteenth. All the rest and residue of my property and estate, of whatever kind and wherever situated, held by my trustee at the death of my brother Josephus, I will be divided into three equal parts, and I give and bequeath the same as follows: One-third part to the Ladies' Seamen's Friend Society of New Haven, a corporation organized under the laws of Connecticut, for the aiding of destitute seamen. The remaining two-thirds parts I give and bequeath to the Episcopal Church society of New Haven, Connecticut, known as 'Saint Paul's,' to be used as provided in the following (15th) fifteenth section of this my will. Fifteenth. Of the two-thirds parts bequeathed to the said Episcopal Church society known as 'Saint Paul's,' I will that one-half of the same be used by the wardens and vestry of said society for the purpose of erecting an Episcopal chapel, and sustaining a mission, upon my homestead; and in the erection of said chapel it is my wish that so much of the material in my house may be utilized as appears practical; and the said chapel shall be known as the 'Forbes Chapel.' Whenever the said mission can demonstrate to the satisfaction of the wardens and vestry of the said Saint Paul's Society that it is capable of maintaining itself as an independent church, then, when properly organized under the general laws of the Episcopal Church, and the laws of the state of Connecticut, then the said wardens and vestry of Saint Paul's Society shall convey to said church society so organized all of the property received from my estate, for the use and benefit of said mission, to said church society, to be its property forever. The remaining half I direct the wardens and vestry of the said St. Paul's Society to invest in such a manner as Will best provide a home for ladies of advanced age, or infirm, who are or who may hereafter become connected with the said St. Paul's Church Society, or with the mission or the church that is to be established upon my homestead, as hereinbefore provided for." The testatrix died in 1888, aged 80, leaving a net estate of more than $400,000. She was a member of St Paul's Episcopal Society. Josephus Forbes died in 1900. The Ladles' Seamen's Friend Society of the city of New Haven was incorporated in 1860 (5 Sp. Laws, p. 347), "for the purpose of aiding the destitute seamen who may frequent the port of said city, and of endeavoring to benefit the temporal and spiritual interests of such seamen as chance or commerce may bring to said port," and was made "capable in law to purchase and receive all kinds of property, real and personal, and the same to hold free from taxation, for the purposes of their incorporation, to an amount not exceeding fifteen thousand dollars, and the same may sell and dispose of at pleasure." In 1895 Its charter was amended by changing its name and providing further that it "under said name may exist for its original purpose, and for the purpose of aiding seaman who may come into any port in the state of Connecticut, and of endeavoring to benefit the temporal and spiritual interests of such seamen, and for such purposes shall be capable in law to purchase and receive all kinds of property, real and personal, and to sell and dispose of the same at pleasure; but all grants, gifts, legacies, bequests, and contracts, heretofore or hereafter made to, by, or with said corporation by the name of the Ladies' Seamen's Friend Society of the city of New Haven shall nevertheless be effectual and valid: provided that said corporation shall at no time hold real or personal estate the annual income of which shall exceed ten thousand dollars."

William H. Williams, George D. Watrous, and Edward A. Harriman, for the residuary legatees.

Henry Stoddard, A. Heaton Robertson, and John W. Bristol, for the heirs at law.

BALDWIN, J. (after stating the facts). The Ladies' Seamen's Friend Society of New Haven, at the decease of the testatrix, was incorporated "for the purpose of aiding the destitute seamen who may frequent the port of said city, and of endeavoring to benefit the temporal and spiritual interests of such seamen as chance or commerce may bring to said port." The legacy in its favor now in question was given "for the aiding of destitute seamen." The mode of expenditure thus prescribed falls directly within the first of its corporate purposes. The legacy amounts to over $150,000, and the appellants correctly claim that the limitation in the original charter as to holding property "to an amount not exceeding fifteen thousand dollars" cannot fairly be restricted to the immunity from taxation, but applies generally to the capacity of the society to acquire. If this objection be one that can only be taken by the state, the decree of probate should be affirmed; for not only has the state taken no adverse action, but it has so amended the charter as to remove the restriction. If, on the other hand, the objection would otherwise be available to the heirs at law, it has been removed by what has taken place subsequent to the will. The bequest was to a good charitable use, the aiding of a certain and definite class of the poor; and a power in the legatee to select the particular members of the class to be benefited was necessarily implied. New Haven Young Men's Inst. v. City of New Haven, 60 Conn. 32, 41, 22 Atl. 447. The society was incorporated for accomplishing that and other purposes. It was therefore a suitable agency for the administration of the charity. It was to receive no beneficial interest. Whatever should come into its hands, would come clothed with a special trust. Dexter v. Evans, 63 Conn. 58, 60, 27 Atl. 308, 38 Am. St. Rep. 330. If then it were legally incompetent to receive so large a legacy, the case would be simply one of the failure of a trustee. This in equity never involves a failure of the trust. When the difficulty arises from a refusal by the trustee appointed to act, it is necessary to have another one formally appointed by a court of equity or a court of probate. Dailey v. City of New Haven, 60 Conn. 314, 322, 22 Atl. 945, 14 L. R. A. 69. But here the trustee selected by the testatrix is ready to accept the office. It is and has always been unquestionably competent to receive so much of the legacy as does not make its entire property exceed $15,000 in value. It is not...